ATTORNEY GRIEVANCE COMMISSIOIN v. Seiden

• Decision Date: 14 March 2003
• Docket Number: Misc. Docket No. 19
• Citation: 818 A.2d 1108,373 Md. 409
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Richard SEIDEN.
• Court: Maryland Court of Appeals

818 A.2d 1108

373 Md. 409

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Richard SEIDEN.

Misc. Docket No. 19, Sept. Term, 2002.

Court of Appeals of Maryland.

March 14, 2003.

Melvin Hirshman, Bar Counsel and Gail Kessler, Asst. Bar Council for Atty. Grievance Com'n of Maryland, for petitioner.

Diane Goldsmith, Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

CATHELL, Judge.

On April 16, 2002, the Attorney Grievance Commission of Maryland, petitioner, by Melvin Hirshman, Bar Counsel, and Gail D. Kessler, Assistant Bar Counsel, filed a petition¹ for disciplinary action against Richard Seiden, respondent, for multiple violations of the Maryland Rules of Professional Conduct (MRPC). The petition alleged that respondent, based upon his representation of Penelope L. Mentlik, had violated MRPC 1.1, 1.15(b) and 8.4(a) and (d).²

On April 17, 2002, pursuant to Maryland Rule 16-709 et seq., this Court transmitted the matter to Judge Thomas J. Bollinger, Sr. of the Circuit Court of Baltimore County to conduct a hearing and to make findings of fact and conclusions of law.³ On June 13, 2002, an evidentiary hearing was held before the hearing judge. On November 14, 2002, Judge Bollinger issued his Memorandum Opinion and found by clear and convincing evidence that respondent violated MRPC 1.1, 1.15(b) and 8.4. The record was transferred from the hearing judge to our Court for oral argument. Pursuant to Maryland Rule 16-711(b)(2),⁴ respondent filed with this Court exceptions to the hearing judge's Findings of Fact and Conclusions of Law.

I. Facts

Respondent was admitted to the Bar of Maryland on November 16, 1978 and maintains his practice of law in his office located in Baltimore County. The Petition for Disciplinary Action in this case was based upon the complaint of Penelope L. Mentlik, BC Docket No. 2001-234-3-9. Her complaint was initially made by a letter dated December 27, 2000.

Judge Bollinger's Findings of Fact and Conclusions of Law are, in part, as follows:

"FINDINGS OF FACT

"The Court finds by clear and convincing evidence that.... The complainant, Penelope L. Mentlik, was [the] Personal Representative of the Dorothy P. Dunkel estate. In August of 1998, Ms. Mentlik retained the services of the Respondent to represent the estate. During this representation the Respondent attended the settlement of real estate property which was part of the estate of Dorothy P. Dunkel. At the settlement, a check was tendered and made payable to `Penelope L. Mentlik, Personal Representative of the Estate of Dorothy P. Dunkel.' The check was in the amount of $32,422.58. The Respondent deposited this check into his escrow account and signed Ms. Mentlik's name. This Court can not find by clear and convincing evidence that the Respondent signed Ms. Mentlik's name, endorsing the check, without her authority. I also find that the Respondent wrote a check from his own escrow account in the amount of $28,022.58 payable to `Penelope L. Mentlik, Personal Representative of the Estate of Dorothy Dunkel.' He deducted a legal fee of $4400 from the estate funds without submitting a Fee Petition to the Orphans Court and without the Complainant's written consent to the fee. At the hearing on this matter the Respondent had not maintained the $4400 in his escrow account and still had not submitted a Fee Petition to the Orphans Court for approval to take that fee.

"The Court finds, in mitigation, by a preponderance of the evidence, that the Respondent had a difficult client in the person of Ms. Mentlik and there was a dispute between them regarding almost every aspect of the legal representation. The Court further finds that the Respondent suffered ill health during the representation; however, the Court does not find these mitigating factors to excuse the taking of a fee without approval of the Orphans Court.

CONCLUSIONS OF LAW

"The Court, upon review of the various exhibits, deposition testimony and testimony at the hearing, finds by clear and convincing evidence that the Respondent has indeed violated Rule 1.1

Competence; Rule 1.15(b) Safekeeping Property and Rule 8.4 Misconduct.

"Mr. Seiden had no lawful claim to the funds he took from Ms. Dunkel's estate and his taking of those funds for his personal use was theft and a criminal act reflecting adversely on his honesty, trustworthiness and fitness as an attorney. His taking of those funds was dishonest." [Emphasis added.]

II. Discussion

A. Standard of Review

In Attorney Grievance Commission v. Harris, 371 Md. 510, 539-40, 810 A.2d 457, 474-75 (2002), we recently stated:

"It is well established that `[t]his Court has original jurisdiction over attorney disciplinary proceedings.' Attorney Grievance Comm'n v. Dunietz, 368 Md. 419, 427, 795 A.2d 706, 710-11 (2002) (citing Attorney Grievance Comm'n v. Snyder, 368 Md. 242, 253, 793 A.2d 515, 521 (2002)); Attorney Grievance Comm'n v. Harris, 366 Md. 376, 388, 784 A.2d 516, 523 (2001); Attorney Grievance Comm'n v. Gavin, 350 Md. 176, 189, 711 A.2d 193, 200 (1998); Attorney Grievance Comm'n v. Adams, 349 Md. 86, 93, 706 A.2d 1080, 1083 (1998); Attorney Grievance Comm'n v. Glenn, 341 Md. 448, 470, 671 A.2d 463, 473 (1996); Attorney Grievance Comm'n v. Kent, 337 Md. 361, 371, 653 A.2d 909, 914 (1995); Attorney Grievance Comm'n v. Powell, 328 Md. 276, 287, 614 A.2d 102, 108 (1992). See also Md. Rule 16-709(b) (stating that `[c]harges against an attorney shall be filed on behalf of the [Attorney Grievance] Commission in the Court of Appeals').⁵ Furthermore, `[a]s the Court of original and complete jurisdiction for attorney disciplinary proceedings in Maryland, we conduct an independent review of the record.' Attorney Grievance Comm'n v. Garfield, 369 Md. 85, 97, 797 A.2d 757, 763 (2002) (quoting Snyder, 368 Md. at 253, 793 A.2d at 521 (citing Attorney Grievance Comm'n v. Garland, 345 Md. 383, 392, 692 A.2d 465, 469 (1997))).

"In our review of the record, `[t]he hearing judge's findings of fact will be accepted unless we determine that they are clearly erroneous.' Garfield, 369 Md. at 97, 797 A.2d at 763 (quoting Snyder, 368 Md. at 253, 793 A.2d at 521 (citations omitted)). See also Dunietz, 368 Md. at 427-28,

795 A.2d at 711 (`The hearing judge's findings of fact" are prima facie correct and will not be disturbed unless clearly erroneous." `) (quoting Attorney Grievance Comm'n v. Zdravkovich, 362 Md. 1, 21, 762 A.2d 950, 960-61 (2000)); Attorney Grievance Comm'n v. Monfried, 368 Md. 373, 388, 794 A.2d 92, 100 (2002) (`Factual findings of the hearing judge will not be disturbed if they are based on clear and convincing evidence.'). We recently reiterated the definition of clear and convincing evidence in Harris, 366 Md. at 389,

784 A.2d at 523 (quoting Attorney Grievance Comm'n v. Mooney, 359 Md. 56, 79, 753 A.2d 17, 29 (2000)), when we said:

`"The requirement of `clear and convincing' or `satisfactory' evidence does not call for `unanswerable' or `conclusive' evidence. The quality of proof, to be clear and convincing, has also been said to be somewhere between the rule in ordinary civil cases and the requirement of criminal procedure—that is, it must be more than a mere preponderance but not beyond a reasonable doubt. It has also been said that the term `clear and convincing' evidence means that the witnesses to a fact must be found to be credible, and that the facts to which they have testified are distinctly remembered and the details hereof narrated exactly and in due order, so as to enable the trier of the facts to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. Whether evidence is clear and convincing requires weighing, comparing, testing, and judging its worth when considered in connection with all the facts and circumstances in evidence." [Emphasis added.]

359 Md. at 79, 753 A.2d at 29 (quoting Berkey v. Delia, 287 Md. 302, 320, 413 A.2d 170, 178 (1980) (citing Whittington v. State, 8 Md.App. 676, 679 n. 3, 262 A.2d 75, 77 n. 3 (1970))).' We recently explained in Dunietz that `[a]s to the hearing judge's conclusions of law, "our consideration is essentially de novo."' Dunietz, 368 Md. at 428,

795 A.2d at 711 (quoting Attorney Grievance Comm'n v. Thompson, 367 Md. 315, 322, 786 A.2d 763, 768 (2001) (quoting Attorney Grievance Comm'n v. Briscoe, 357 Md. 554, 562, 745 A.2d 1037, 1041 (2000)))."

As indicated supra, respondent has filed exceptions to the hearing judge's findings of fact and conclusions of law. After a review of the record, we affirm the hearing judge's findings of fact and hold that they are not clearly erroneous and are based on clear and convincing evidence. See Garfield, 369 Md. at 97,

797 A.2d at 763-64; Dunietz, 368 Md. at 427-28,

795 A.2d at 711; Monfried, 368 Md. at 388,

794 A.2d at 100. We adopt, however, only those portions of the hearing judge's conclusions of law that find the respondent in violation of MRPC 1.1, 1.15(b), 8.4(a) and 8.4(d). We shall sustain respondent's exception as to the hearing judge's conclusion that respondent's actions constituted theft and a criminal act. Petitioner filed no exceptions in this Court.

B. Respondent's Exceptions

Respondent makes two specific exceptions to the hearing judge's conclusions of law. Respondent's exceptions, however, for all intents and purposes, can be merged into a single general exception to the last paragraph of the hearing judge's conclusions of law, discussed infra. Respondent's exceptions encompass the fact that the hearing judge found a general violation of the entire MRPC 8.4 when respondent was only charged with violations of MRPC 8.4(a) and (d). These exceptions, however, do not encompass an exception to the hearing judge's conclusions that respondent violated MRPC 1.1, 1.15(b), 8.4(a) and 8.4(d). In fact, respondent, in his Exceptions and Response to Recommendation for Sanctions, specifically admits his violations of these rules when he stat...